In a highly publicized “gay panic” case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King’s alleged sexual advances. The jury deadlocked, with a majority accepting McInerney’s defense.
Drawing largely upon qualitative empirical research, this article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases of the gay panic defense. Our research reveals one overriding theme: The murder case against the killer, Brandon McInerney, evolved into a prosecution of the victim, Larry King. Many jurors blamed King, and the school officials who “allowed” King to defy sex and gender norms, for the murder; one juror went so far as to characterize King’s behavior as “deviant.” We believe that the jurors reached this conclusion largely because the defense offered evidence that had a strong tendency to inflame the jurors’ prejudices. For example, the defense introduced a photograph of King holding a green prom dress, even though the photograph was of little or no probative value.
To prevent future gay panic cases from evolving into trials of the victims, we propose a “gay shield” rule of evidence: When a judge allows the jury to consider a defense based upon an unwanted sexual advance by an LGBTQ person, the law should limit the trial judge’s ability to admit evidence designed to incite homo/transphobia among jurors. Building upon the law and policy underlying rape shield statutes, gay shield laws would seek to protect the crime victim from being re-victimized at a trial where the accused asserts the gay panic defense.